Imagine a young woman testifying in a criminal case about a robbery that left two people dead. She is the only eyewitness who can identify the defendant as the perpetrator, and the defense’s case hinges on a theory of mistaken identity. Her story is consistent, but she avoids eye contact during her testimony. She recounts the details of her story with her gaze averted to the floor. Before the jury is sent to deliberate, the judge instructs the jury on the central issue of evaluating a witness’s credibility, explaining that it should consider the testifying young woman’s demeanor, including her eye contact. After hearing this instruction and witnessing her testimony, would members of the jury find the young woman credible?
Jurors from different cultures may draw vastly different inferences about the young woman’s credibility from her eye contact. In some cultures, avoiding direct eye contact demonstrates a sign of respect—and may enhance a witness’s credibility.1 Conversely, in Western culture, avoiding eye contact is often considered an indication of deception or untruthfulness—and may diminish a witness’s credibility. Consequently, a more diverse jury may be inclined to find the young woman credible or engage in a more open discussion about how to interpret the woman’s lack of eye contact. On the other hand, a less diverse jury may be more willing to find that the young woman’s testimony was not credible. How a small act, like eye contact, can be interpreted differently by jurors depending on their background highlights how jury diversity may impact the outcome of a trial.
A lack of jury diversity continues to be a problem for our legal system. There are, of course, many reasons for this. As the first Latino chief judge in the 229-year history of the Eastern District of Pennsylvania, one of my top priorities is ensuring our court’s jury pool is representative of the community. Our court has developed its plan for increasing juror diversity and representation through a grassroots initiative. The Eastern District of Pennsylvania comprises nine counties—some rural and others urban. To ensure the jury pool better represents the district, the court adopted several major reforms. Through these initiatives, the court has been able to draw a more diverse and representative jury pool that better meets the needs of our community and fosters community engagement in the legal system.
The Importance of Jury Diversity
Jury diversity is essential to our legal system, yet it remains a complex challenge for many courts. Jury diversity promotes the Sixth Amendment principle that a jury should reflect the community from which it is drawn and, therefore, serve as that community’s conscience. In the landmark case of Taylor v. Louisiana, the U.S. Supreme Court held that the Sixth Amendment guarantees the right to have “a jury drawn from a fair cross section of the community.”2 Through their verdicts and judgments, juries should reflect the community’s sense of justice and fairness. As our communities continue to diversify, diversity in jury pools and panels is becoming a more pressing concern for courts.
Empirical data also show that jury diversity increases the quality of verdicts and provides for more just results. In his dissenting opinion in Taylor, Justice William Rehnquist set forth the view that jurors are interchangeable—regardless of their background—so long as they are able to objectively and impartially decide the issues in the case.3 This has been referred to as the “reasonable person” view of the jury pool and focuses on “impartiality” rather than “representativeness.”4 To some extent, the reasonable person view may be intellectually appealing. Objectivity is a touchstone of the administration of justice. However, as the hypothetical described in the introduction intimates, two wholly “impartial” jurors can observe the same evidence through different cultural prisms and reach diametrically opposite conclusions. Rather than ignore these differences and the discussions during deliberations they are sure to spark, courts should harness the well-documented benefits of diversity by adopting policies that value both impartiality and diversity.
For years, scholars have studied the effect of increased jury diversity on deliberations and trial outcomes. These studies consistently demonstrate that diversity—whether race, age, or gender based—has a positive impact on deliberations. These studies demonstrate diverse juries make fewer errors, engage in more thorough deliberations, and eliminate biases and prejudices during the deliberation process.5 What is more, data show that having just one diverse juror in the jury pool—not even on the final empaneled jury—can increase equity and fairness in the administration of justice.6
From a public relations perspective—which is an important consideration given how much the judiciary’s power is derived from its perceived authority––racially diverse juries provide the appearance of fairer adjudications. In a 2003 study on how jury diversity affects the perception of the legal system, researchers found that when participants in the study were provided with the description of a trial involving an all-white jury and a Black defendant, the participants perceived the guilty verdict to be less fair than when they were provided with a scenario involving a mixed-race jury.7 A similar study conducted in 2002 further found that jurors who deliberated in a diverse jury reported that they were more satisfied with the deliberations and their verdict.8
Studies have found that gender and age diversity also improve the tone and thoroughness of deliberations, which suggests not only a more positive experience for jurors but also a greater likelihood that a verdict will be based on more thorough deliberations.9 A 2003 study that focused on the effect of gender and age on jury deliberations concluded that the gender composition of a jury had the most profound effect on its deliberations.10 Specifically, the study revealed that as gender diversity increased, the tone of the deliberations became less hostile and more harmonious. Jurors became more supportive of each other’s opinions and thoughts. Less contentious deliberations suggest that verdicts will hew closer to the evidence—rather than any impermissible basis, such as interpersonal conflicts among the jurors.
Finally, greater racial diversity results in a more thorough deliberative process and brings fairness to the trial process.11 In 2006, a study found racially diverse juries “deliberated longer and considered a wider range of information than” racially nondiverse juries.12 The study further determined that the thoroughness in deliberations resulted from a symbiotic interaction between racially diverse jurors. Black jurors added unique perspectives based on their own experiences, and, in response, white jurors “raised more case facts, made fewer factual errors, and were more amenable to discussing race-related issues.” The study ultimately concluded that, notwithstanding the “moral or Constitutional ideal” that juries should be diverse and inclusive, racial diversity is “an ingredient for superior performance.”
Likewise, a 2012 study led by a Duke University researcher found that racial diversity within the jury pool increases fairness within the legal system.13 The study looked at more than 700 felony trials between 2000 and 2010 and found that all-white jury pools were significantly more likely to lead to convictions of Black defendants than of white defendants. However, when a single Black juror was included in the pool—prior to the court empaneling the jury—this gap was nearly eliminated, and conviction rates were nearly identical for both groups of defendants.
Jury diversity is also valuable for its power as a tool of civic engagement. It is one of the many ways of ensuring a diverse range of citizens directly participate in government action and are empowered to engage in other civic processes. Our country was founded on the basic principle of popular sovereignty—meaning its citizens hold the ultimate power over the government.14 To achieve this goal of popular sovereignty, participation of each citizen is a necessary predicate. Apart from voting in elections, however, there are limited opportunities for citizens to directly influence government action. Jury service is the exception to this general rule.
Being a juror provides citizens the unique opportunity to directly influence government activity by acting as a significant check on governmental power and increasing the accountability of government officials. In civil cases, the jury prevents “judicial autocracy.”15 By removing the factfinding process from the judge’s purview, juries help offset any bias that may be introduced through a judge’s personal preferences. In criminal cases, the jury limits not just the judge’s authority but also the power of the executive branch, whose constitutional obligation is to enforce the laws, and the legislative branch, whose constitutional obligation is to draft and enact those laws.16 Furthermore, if diverse jurors face structural or institutional barriers to socioeconomic prosperity or view the justice system as corrupt, jury service is their firsthand opportunity to hold individuals, entities, or the government accountable. Thus, jury diversity is key to ensuring each member of the community has the opportunity to directly participate in governmental action.
Jury service also facilitates engagement in other civic processes. A 2014 study found that jurors who participate in a jury that is required to reach a unanimous verdict or a civil jury of 12 are significantly more likely to vote after their jury service.17 The same study found that jurors deciding criminal cases or cases involving organizational defendants likewise experience a boost in voting behavior.18 Because of the significant increase in voting associated with jury service, jury diversity is fundamental to facilitating the democratic process and empowering citizens to further engage in the democratic process.
The Challenges of Achieving Jury Diversity
The vast majority of Americans consider jury service to be an integral component of good citizenship.19 Yet a substantial portion of citizens called to serve—diverse or otherwise—never report for duty.20 The reasons for this lack of participation often relate to the process by which potential jurors are summoned for service. Despite the myriad modern communication methods, potential jurors are still summoned by mail.21 This presupposes that potential jurors diligently update the address associated with their voter registration, which is used to populate the jury pool, but also that courts frequently update the lists derived from the voter registration data. In more transient communities (i.e., communities with fewer socioeconomic resources, which are more likely to be diverse), the result is that fewer individuals are likely to receive a summons even if it is sent in a proportion equal to their suburban and rural neighbors.22 This may help explain why, at least in my experience, trial pools in the Eastern District of Pennsylvania appear to be whiter, older, and from the district’s more suburban and rural counties, despite the fact that the courthouse sits in one of the largest and most diverse cities in the country.
Another process-related hurdle to greater diversity in jury panels is the impact of statutory exclusions on service by citizens convicted of felonies.23 Federal law categorically disqualifies individuals with pending felony charges or felony convictions from serving on federal juries, as is the case with a majority of states.24 This exclusion prevents communities of color from participating in jury service because people of color tend to be charged and convicted of felonies at a greater rate than their white peers. For example, in 2016, there were 1,608 Black prisoners serving prison sentences for one or more years for every 100,000 Black adults, and 856 Hispanic inmates serving such sentences for every 100,000 Hispanic adults. By contrast, there were only 274 white prisoners serving one or more years for every 100,000 white adults. On a nationwide basis, this means that Black and Hispanic individuals are being disproportionately denied the right to serve on a jury because of their felony convictions.
The method used by courts to obtain lists of potential jurors may also contribute to less-than-full participation in the jury system by diverse communities. Most courts rely, at least in part, on information culled from voter registration lists.25 The use of these lists assumes that all communities register to vote in proportion to their presence in the population. However, there is evidence that diverse communities may have lower rates of voter registration, the ultimate result of which is that such communities are underrepresented both at the polls and in the jury box. This concern is a longstanding one that has inspired jurisdictions to experiment with supplemental sources of potential juror information. Such innovations include drawing potential jurors from utility records, driver’s license records (an innovation tried in this district and later abandoned after it was found to have exacerbated the problem), and records linked to the provision of social services.26
Jury diversity is also hindered by various situations unique to each juror. Assuming diverse jurors are selected from the master list, receive their summonses, and are qualified to serve, they must also overcome the financial hardship wrought by the interruption to their employment. Although 49 states and the federal government prohibit an employer from terminating an employee for taking time off to serve on a jury,27 in many states, a private employer need not pay an employee for time spent serving on a jury.28
In the handful of states that do require private employers to pay employees while on jury duty, the law oftentimes requires employers to pay only a small fraction of the employee’s wages.29 Where jurors receive compensation from the court, the payments are often inadequate to make up for the lost wages and fail to take into account other incidental costs, like securing childcare or transportation to and from the courthouse. Federal courts pay jurors up to $50 per day for the first 10 days of trial and up to $60 per day for each day thereafter.30 In Pennsylvania courts, however, compensation for jury service is fixed at $9 per day for the first three days of service and $25 per each day thereafter.31 Although the loss of a few days’ income may be inconsequential to some, it poses a greater impediment to adults of color, whose median household incomes, on a national basis, hover between 61 percent and 77 percent of that of their white peers.32
Finally, individual attitudes toward the fairness of the justice system may negatively impact diversity. In 2017, Pennsylvania’s First Judicial District, which encompasses Philadelphia, conducted an informal survey of Philadelphians and identified “[l]ack of trust in the criminal justice system” as one of the reasons potential jurors fail to respond to summonses to appear for service in that court.33 This investigation found that in zip codes with the lowest summons response rates, more than 60 percent of individuals self-identify as Black and almost 20 percent self-identify as Hispanic. Also of note, individuals who had received summonses but did not respond identified several of the issues explained above as their reasons for not participating: “[i]ssues with [potential jurors’] jobs,” “[l]ow juror pay,” and “[l]ack of trust in the criminal justice system” dampen juror participation in Philadelphia courts.
Changes within the Eastern District of Pennsylvania
Although a lack of juror diversity will not be clear to the presiding judge or litigants until a jury is empaneled, to effectively ensure that juries are representative of the community, steps need to be taken when the jury pool itself is being assembled.34 To ensure our jury plan fosters a representative jury pool, our court formed a Jury Diversity Subcommittee. The subcommittee proposed several recommendations, four of which were ultimately adopted. First, we added more names from the source list (i.e., the voter registration list) to our “master wheel,” increasing the size of our master wheel from 167,792 names to 347,163. This enhancement was both simple and cost-effective, as it did not require our jury administrator to undertake any additional tasks and was easy to implement.
Second, we increased the frequency with which the court conducts change-of-address checks to remove names of those who have passed away, changed addresses, or moved out of the district. Previously, the Eastern District of Pennsylvania verified addresses of those on its qualified wheel once every two years through the U.S. Postal Service’s system of updated addresses, referred to as the National Change of Address Linkage. We now verify these addresses every six months. While not everyone who moves will notify the Postal Service of their change of address, more frequent address checks lead to a more accurate and up-to-date address database for all potential jurors on the qualified wheel.35
Third, when a juror qualification questionnaire is not returned, another one is sent in its place. The jury plan now provides that if a reasonable period of time has passed after the Clerk’s Office has received a questionnaire as undeliverable, a second questionnaire is to be mailed, at random, to a different address in the same zip code.36 By resending questionnaires to individuals located in the same zip code, as opposed to the same county, the court maintains geographic proportionality and representation. While this change does require more resources, the potential benefit of a more racially representative qualified wheel far outweighs any additional resource concerns.
The final reform concerns a community outreach and education program. With the assistance of community members from grassroots organizations, religious institutions, nonprofits, law firms, the media, and the local court, we are developing and implementing a strategic community outreach program to educate potential jurors about the importance of jury duty. These individuals have been involved in many meetings in our courthouse to develop this plan to target potential jurors, educate them about the importance of jury service and the Eastern District of Pennsylvania’s jury selection process, and encourage them to serve on juries. Specific outreach efforts may include posters, public service announcements, social media campaigns, and educational events delivered by celebrity influencers, former jurors, and clergy members.
In his majority opinion in Taylor v. Louisiana, Justice Byron White wrote: “When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.”37 As the Supreme Court recognized then, and as is true today, jury diversity and inclusion strengthen our legal system and promote the fair administration of justice. Nevertheless, jury diversity remains a complex issue for courts to solve. The strength of our jury system depends on people’s engagement with the system. It is thus crucial to promote jury diversity and foster community engagement that encourages active participation in the legal system. For the integrity of our legal system, we must all strive to do better—as officers of our courts, members of our communities, and citizens of our country.
This article was adapted from an article originally published by the Temple Law Review. Juan R. Sánchez, A Plan of Our Own: The Eastern District of Pennsylvania’s Initiative to Increase Jury Diversity, Temp. L. Rev. Online (2018).
1. See Christian Best, Nonverbals, Pa. State Univ. (Sept. 23, 2014), http://sites.psu.edu/intercommpuertorico/nonverbals10 [http://perma.cc/55YX-RWRC] (citing Carmen Judith Nine Curt, Non-verbal Communication in Puerto Rico 29–32 (1984)); see also Edward M. Chen, The Judiciary, Diversity, and Justice for All, 91 Cal. L. Rev. 1109, 1118 (2003) (“In some cultures, meeting the eyes of another is a sign of disrespect under certain circumstances.”).
2. 419 U.S. 522 (1975).
3. Id. at 541–43 (Rehnquist, J., dissenting). See The First Jud. Dist. of PA., Juror Participation Initiative 2 (2018), http://www.courts.phila.gov/pdf/report/FJD_JPIC_Final.pdf [http://perma.cc/A2QH-F727].
4. Nancy S. Marder, Juries, Justice & Multiculturalism, 75 S. Cal. L. Rev. 659, 664–65 (2002).
5. See, e.g., Leslie Ellis & Shari Seidman Diamond, Race, Diversity, and Jury Composition: Battering and Bolstering Legitimacy, 78 Chi.-Kent L. Rev. 1033, 1045–48 (2003); Marder, supra note 4, at 687, 694; Samuel R. Sommers, On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90 J. Personality & Soc. Psych. 597, 600–12 (2006).
6. See, e.g., Shamena Anwar et al., The Impact of Jury Race in Criminal Trials, 127 Q.J. Econ. 1017, 1035 (2012).
7. Ellis & Diamond, supra note 5, at 1043–48.
8. Marder, supra note 4, at 701.
9. See, e.g., Andrea Hickerson & John Gastil, Assessing the Difference Critique of Deliberation: Gender, Emotion, and the Jury Experience, 18 Commc’n Theory 281, 290–303 (2008).
10. Marder, supra note 4, at 700.
11. See, e.g., Anwar et al., supra note 6, at 1026–50; Sommers, supra note 5, at 601–10.
12. Sommers, supra note 5, at 597–612.
13. Anwar et al., supra note 6, at 1017–55.
14. See Michael A. Dawson, Note, Popular Sovereignty, Double Jeopardy, and the Dual Sovereignty Doctrine, 102 Yale L.J. 281, 282–83 (1992).
15. Sheldon Whitehouse, Restoring the Civil Jury’s Role in the Structure of Our Government, 55 Wm. & Mary L. Rev. 1241, 1266–72 (2014).
16. See Andrew Guthrie Ferguson, Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action 139–42 (2012).
17. Valerie P. Hans et al., Deliberative Democracy and the American Civil Jury, 11 J. Empirical Legal Stud. 697, 709–13 (2014).
18. Id.; see John Gastil et al., Civic Awakening in the Jury Room: A Test of the Connection Between Jury Deliberation and Political Participation, 64 J. Pol. 585, 585, 593 (2002).
19. See Pew Rsch. Ctr., Public Supports Aim of Making It “Easy” for All Citizens to Vote 8 (2017), http://perma.cc/Q7KD-LTB8; see also John Gramlich, Jury Duty Is Rare, but Most Americans See It as Part of Good Citizenship, Pew Rsch. Ctr. (Aug. 24, 2017), http://perma.cc/5DR8-LDC9.
20. See First Jud. Dist. of Pa., supra note 3, at 2; see also Maxine Bernstein, Judges Cracking Down on People Who Snub Jury Duty, AP (May 21, 2017), http://www.apnews.com/62b279c38615469fb9bee505c9c66ff5 [http://perma.cc/2TP6-LFA5].
21. See 28 U.S.C. § 1866(b) (2018); see also U.S. Dist. Ct. for the E. Dist. of Pa., Plan for the Random Selection of Grand and Petit Jurors 5 (2017) [hereinafter E.D. Pa., Jury Plan], http://www.paed.uscourts.gov/documents/jury/Jury%20Plan.pdf [http://perma.cc/7MHT-5QM4].
22. See William J. Caprathe, State Trial Judges Conf., Are Your Jury Pools Representative of the Community? 6 (2012), http://www.americanbar.org/content/dam/aba/administrative/state_trial_judges/stj_checklist_jurypool.pdf [http://perma.cc/ADN5-RVVW]; see also First Jud. Dist. of Pa., supra note 3, at 6.
23. See Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 Am. U. L. Rev. 65, 113–14 (2003) (quoting Jeffrey S. Brand, The Supreme Court, Equal Protection, and Jury Selection: Denying That Race Still Matters, 1994 Wis. L. Rev. 511, 622).
24. 28 U.S.C. § 1865(b)(5); see also Margaret Colgate Love et al., Collateral Consequences of Criminal Convictions § 2:4 (2018–19 ed.); Kalt, supra note 23, at 150–57; Restoration of Rights Project, 50-State Comparison: Loss and Restoration of Civil Rights & Firearms Rights, Collateral Consequences Res. Ctr., http://www.ccresourcecenter.org/state-restoration-profiles/chart-1-loss-and-restoration-of-civil-rights-and-firearms-privileges [http://perma.cc/2F87-VKQV] (last visited Mar. 12, 2019).
25. Julie A. Cascino, Note, Following Oregon’s Trail: Implementing Automatic Voter Registration to Provide for Improved Jury Representation in the United States, 59 Wm. & Mary L. Rev. 2575, 2583 (2018).
26. Alexander E. Preller, Jury Duty Is a Poll Tax: The Case for Severing the Link Between Voter Registration and Jury Service, 46 Colum. J.L. & Soc. Probs. 1, 42–48 (2012).
27. Id. at 13.
28. See, e.g., N.J. Stat. Ann. § 2B:20-17 (West 2019); 42 Pa. Stat. and Cons. Stat. Ann. § 4563(a) (West 2019).
29. See Ala. Code § 12-16-8(c) (West 2019); Colo. Rev. Stat. Ann. § 13-71-126 (West 2019); Conn. Gen. Stat. Ann. § 51-247(a) (West 2019); La. Stat. Ann. § 23:965(B)(1) (West 2019); Mass. Gen. Laws Ann. ch. 234A, § 48 (West 2019); Neb. Rev. Stat. Ann. § 25-1640 (West 2019); N.Y. Jud. Law § 519 (McKinney 2019); Tenn. Code Ann. § 22-4-106(b) (West 2019).
30. 28 U.S.C. § 1871(b)(1) (2018); id. § 1871(b)(2).
31. 42 Pa. Stat. and Cons. Stat. Ann. § 4561(a).
32. Kayla Fontenot et al., U.S. Census Bureau, P60-263, Income And Poverty in the United States: 2017, at 2 (2018), http://www.census.gov/content/dam/Census/library/publications/2018/demo/p60-263.pdf [http://perma.cc/L8SZ-TR5D].
33. First Jud. Dist. of Pa., supra note 3, at 5–6.
34. See Caprathe, supra note 22, at 1.
35. See Hiroshi Fukurai, Edgar W. Butler & Richard Krooth, Race and the Jury: Racial Disenfranchisement and the Search for Justice 22 (Plenum Series in Crime & Just., James Alan Fox & Joseph Weis eds., 1993).
36. See E.D. Pa., Jury Plan, supra note 21, at 5.
37. 419 U.S. 522, 532 n.12 (1975) (quoting Peters v. Kiff, 407 U.S. 493, 503 (1972)).